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Monthly Theme: Opening Statements Part Two

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Objections in Openings

Written by NITA guest blogger Sara Jacobson1

The purpose of opening statements is to lay out your theory of the case and to preview what you believe the evidence will be, but rules still apply.2 While not codified in the formal Federal Rules of Evidence, there are limits to what lawyers can do in speeches. As with everything, you need to know where the boundaries are before you push them. Here are some of the things lawyers cannot do in opening statements.

    • ARGUE
      The main difference between opening statement and closing argument, is that in closing, lawyers are permitted to argue; whereas, in openings they cannot.3

      • THE OBJECTION: What makes something argument? If the lawyer is explaining what conclusions the jury should draw from facts or talking about what the evidence means, its impermissible argument in opening. Rhetorical questions are argumentative by their nature and should be avoided in opening. Comments on the viability of the approach taken by opposing counsel, qualifies as argument too.
      • THE RESPONSE: The most common response is to explain to the jury that everything the lawyer is talking about in opening is what they believe the evidence will be, and to thereafter use more of ‘the evidence will show’ phrasing than one generally would.
    • VOUCH
      Vouching comes in two common forms and is prohibited in both opening statements and closing arguments. An attorney is vouching when they offer an opinion on the ultimate guilt or liability at issue, or when they comment on the credibility of a witness.

      • THE OBJECTION: There are a number of cases across jurisdictions that note the prohibition against lawyers giving their opinion on the ultimate issue or on credibility.4 Both types of vouching were addressed by the Supreme Court in 1985 in U.S. v. Young.5 Young dealt with vouching by both sides in closing argument in a prosecution for fraud. The defense argued that “the [prosecution’s] statements have been made to poison your minds unfairly,” hinted that the prosecution withheld evidence, and added – while pointing at the prosecution table – “there’s not a person in this courtroom, including those sitting at this table who think Billy Young intended to defraud Apco.”6 Defense counsel also went on to claim that the defendant was “the only one … that has acted with honor and with integrity.”7 In rebuttal, the prosecutor responded, saying, “(w)ell, I was sitting there and I think he was …. If we are allowed to give our personal impressions since it was asked of me …. I don’t know what you call that, I call it fraud.”8 The prosecutor repeated the fraud claim multiple times during the closing. The Court rebuked both sides, citing ABA Standard for Criminal Justice 3-5.8(b)9 and noting, “(t)he kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded.”10 Ultimately, although disproving of counsels’ conduct, the court found that the prosecutor’s comments were a fair, invited response and did not find sufficient plain error, absent contemporaneous objection, to overturn the conviction.
      • THE RESPONSE: If closing, if the argument is re-framed and couched either as what common sense tells the jury or as what the evidence has shown, vouching can be avoided. Take for example US v. Morris, where the 5th Circuit which drew that very distinction, finding that “an attorney properly may state, ‘I believe that the evidence has shown the defendant’s guilt,’ but… may not state, ‘I believe that the defendant is guilty.’ ”11 There are no good ways to re-frame or re-fit vouching in opening statements.

There are other, obvious, things that lawyers cannot do in opening, which are also prohibited in closing argument. Lawyers cannot ask the jury to put themselves in the shoes of either party to the case, violating what is sometimes referred to as the ‘golden rule,’ and they cannot misstate either the evidence or the law. While in opening, presumably lawyers would not be misstating the evidence so much as approaching it aspirationally, but know that that approach, too has its consequences. Come closing argument one’s opponent can call out any failure to deliver on the promises of the opening. Finally, prosecutors cannot imply in any way in opening that a criminal defendant will put on a case or might testify, as that violates the defendant’s 5th Amendment right to remain silent.12

Objections don’t frequently occur in opening statement, but is important to know where the lines lie, if nothing else, than to be able to call out your opponent if they break the rules.


1 Sara Jacobson is the Director of Trial Advocacy Programs and Associate Professor, Temple University, Beasley School of Law
2 U.S. v. Zielie, 734 F.2d 1447 (11th Cir. 1984).
3 Id. And see U.S. v. Hershenow, 680 F.2d 847 (1st Cir. 1982). “… (A) court is always free to stop argument if it occurs….”
4 See: U.S. v. Jones¸468 F.3d 704 (10th Cir. 2006); Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000); U.S. v. Thornton, 197 F.3d 241 (7th Cir. 1999); U.S. v. Dispoz-O-Plastics, Inc., 172 F.3d 275 (3rd Cir. 1999); U.S. v. Loayza, 107 F.3d 257 257 (4th Cir. 1997).
5 U.S. v. Young, 470 U.S. 1 (1985).
6 Young at 4-5.
7 Id, at 5.
8 Id, at 5.
9 “[i]t is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” ABA Standards for Criminal Justice 3-5.8(b)(2d ed. 1980.
10 Young at 9.
11 U.S. v. Morris, 568 F.Supp. 396, 402 (5th Cir. 1978)(internal citations omitted).
12 Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

 

Colorado County Attorneys – NITA Public Service Program

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NITA had the opportunity this year to partner with the Colorado County Attorneys for a public service program. The program took place June 7 – 8 in Grand Junction, CO as part of the Colorado County Attorney’s Annual Conference. Over 40 Colorado County attorneys were in attendance for the trial skills program led by NITA Program Director Tom Swett who had great things to say about the program.

“With a great team of experienced NITA volunteer-faculty, we provided focused trial skills training to Colorado county attorneys who often don’t have the resources or time to get skills coaching on how to be better advocates to protect children in dependency and neglect cases. The catch – we only had eight hours to teach and practice case analysis, direct and cross-examination, impeachment, and exhibits. The NITA training was offered as part of the Colorado County Attorney’s Association annual meeting so we only had a day’s worth of time to do what normally is taught in three days. So, instead of 45-minute lectures, we have mini-lectures and demonstrations (5 minutes at the beginning of each session) and used the majority of our time to have the attorneys practice these skills and receive individual feedback from F. Stephen Collins, Judge Robert McGahey, John Watson, Judge D. Brett Woods, and myself. With tight schedules and budgets, it takes extra creativity and dedicated volunteers to make this work. Luckily, since NITA’s start in 1971, it has had 47 years to nurture the collegiality and relationships so that attorneys jump at the chance to volunteer their time and talent to help continue this tradition for the next generation of attorneys,” stated Swett.

Likewise, Assistant County Attorney Rebecca Wiggins, who first reached out to NITA for this program opportunity, said that each faculty member was great and the program received very positive feedback.

One attendee stated, “The learning-by-doing method was outstanding, and the faculty did a good job of pointing out various areas of improvement with each student so everyone could benefit.”

NITA will be doing a follow-up program this fall with the Colorado County Attorneys and we hope to continue this great partnership for the future. Thanks again to NITA’s outstanding faculty members!

Monthly Theme: Opening Statements Part One

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Opening Statements: How to Tell a Persuasive Story

Written by NITA guest blogger and Program Director Michael Johnson

“It was the best of times, it was the worst of times…”

“The magician’s underwear has just been found in a cardboard suitcase  floating in a stagnant pond on the outskirts of Miami.”

“First the Colors.

Then the humans.

That’s usually how I see things.

Or at least how I try.

 

* * * HERE IS A SMALL FACT * * *

You are going to die.

 

What is common to these quotes?

Whether it is from classic fiction (Charles Dickens, A Tale of Two Cities (1859)), a cult novel of a generation (Tom Robbins, Another Roadside Attraction (1971)), or a more contemporary novel (Markus Zusak, The Book Thief (2005)), each of these lines is the first lines of the book–the beginning of the story.

Each is deep with meaning, intrigue, and invitation.

The meaning is not evident, and won’t be clear without delving into the story much deeper.

The intrigue is exactly that–what could this story possibly be for that opening sequence to be true?  How is it possible that it was both the “best of times” and the “worst of times” at the same time?

The invitation is for the reader, listener, to want to know, hear, more:  to want to become engrossed in the story.  And, in the example from The Book Thief, duplicated here as closely as possible from the printed version of the book, the invitation is not only auditory, but visual as well.

The challenge for a Opening Statement is exactly the same.  How do we tell a story, with a compelling start, that invites and intrigues the audience to delve more deeply into the meaning? Our audience is, of course, the jury, and our primary means of communication with them is the spoken word rather than the written word.  The art of telling a story orally differs in the method of delivery but shares much of the principles of a well written and read story.

In my view, and the view of many others, the Opening Statement is the single most significant part of any trial.  It is your opportunity to engage the audience and provide them with a context in which to consider the evidence, the players, and the compelling reason why it is just and right that your side should prevail.  Studies that have examined how jurors decide cases have consistently supported the crucial importance of the Opening Statement.  The studies indicate that there is a strong correlation between a juror’s ultimate conclusion and that juror initial impression.  Put another way, juror’s frequently view the evidence and the closing arguments to validate their sense of the what is the right and just result  Starting strong with a good compelling invitation and a well structured story is a winning combination.

During the NITA webcast on July 12, we will explore these ideas in more detail.  Our discussion will delve into the concepts of primacy and recency, viewing matters from a point of view, how much detail the content of the story should contain, the organization of the story, developing and using thematic statements, and since we are telling a story to a jury in a court of law, the legal context of the story.  We will grapple with how to be persuasive without crossing the line into prohibited argument.  And, very importantly, we will explore the method and manner of delivery, and the importance of being mutli-dimensional.

 

Asked and Answered—Shameka Hall, First Recipient of the Robert VanderLaan Memorial Scholarship

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Last November, The Legal Advocate reported on the memorial celebration that was held in Chicago to remember longtime NITA program director Bob VanderLaan, as well the establishment of the Robert VanderLaan Memorial Scholarship which was inspired by Bob’s devotion to teaching at NITA. Both the memorial event and the scholarship were ideas brought into fruition by Bob’s dear friends and fellow NITA faculty members Dan Rabinovitz and Jon Barnard. Friends and colleagues from across the country gathered in Chicago to remember Bob, and many more contributed to the scholarship created in his name. Indeed, the fund received so many donations that The NITA Foundation was able to award a scholarship almost immediately. We are delighted to share this interview with the first recipient of the Robert VanderLaan Memorial Scholarship, Shameka Hall. Shameka traveled to Chicago in March to attend our Building Trial Skills program, where she met Dan and Jon as they served as program faculty. “Both Dan and I were genuinely impressed with Shameka’s passion and commitment for her work based upon her application, and even more so when we had the chance to meet her in person,” said Jon. “She was indeed a deserving recipient of the first annual Robert VanderLaan Memorial Scholarship.” Shameka is an assistant capital defender for the Office of the Capital Defender for Central Virginia, where she has provided legal counsel in capital cases since 2015. It was our pleasure to get to know her in this interview, and we hope it will be yours as well.

What is a typical day of work for you at the Office of the Capital Defender for Central Virginia?
Most days are spent going through the discovery on our cases, drafting motions that will help put our clients in a better position, and developing theories that can be used to save our clients’ lives.

How often are you in court?
Every four to six weeks, sometimes longer if we don’t have motions to argue. However, when we have a trial, they usually last four weeks.

How did you first hear about NITA’s trial skills training?
I did a Google search looking for trial training programs.

What did it mean to you to receive this training through the Robert VanderLaan Memorial Scholarship?
It was so amazing!! I read up on Mr. VanderLaan and all that he has done for the indigent community and the public defender system, and I was totally in awe!

What “bad” habit would you still be practicing if you hadn’t gone to the NITA program?
I would probably still be drafting my closing argument last. Now, I draft that first and work the remainder of my case from that.

If you hadn’t gone into the law, what career path do you think you might’ve taken instead?
I would have become either a CPA or I would have gone into computer consultation work.

What three things are vital to your day?
Prayer, breakfast, and music.

What fictional figure do you most identify with?
Mary Jane Paul from Being Mary Jane.

What is your hidden talent?
Befriending people and getting them to do what I want them to do.

What are you looking forward to?
Retirement!! Traveling the world.

If you had to lip sync for your life, what song would you choose?
Yes You Can,” by Marvin Sapp.

What’s the most recent show you’ve binge-watched?
It’s a tie . . . The Handmaid’s Tale and West Wing (for the second time).

Lightening round questions. Coffee or tea?
Neither. Hot chocolate.

iPhone or Android?
Android, all day!

Early bird or night owl?
Night owl.

Cats or dogs?
Dogs.

Spring ahead or fall back?
Fall back because I get an extra hour of sleep.

And finally, what’s your motto?
I will always do and succeed at what people tell me that I cannot do.

Fundraising for The Robert VanderLaan Memorial Scholarship is ongoing. If you would like to make a donation in remembrance of Bob, please click here and select “Robert VanderLaan Memorial Scholarship” in the dropdown menu midway down the page. Your donation makes a difference in the lives of the public service lawyers who receive them―and most importantly, in the lives of the clients they serve.

Enjoy this interview? Find more of our Asked and Answered interviews with NITA personalities here on The Legal Advocate.

Carpenter v. United States (2018)

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Written by NITA guest blogger Brent Newton

On June 22, 2018, the Supreme Court, by a vote of 5-4, issued its much-anticipated decision in Carpenter v. United States.  Carpenter was convicted of multiple robberies based in part on evidence that, at the time of four of the robberies, his cell phone had sent signals to numerous cell towers located near the places where the robberies occurred.  Law enforcement officers had obtained over 100 days of cell-tower records from Carpenter’s two wireless carriers without first securing a search warrant based on probable cause.  The Supreme Court reversed Carpenter’s convictions.  It held law enforcement officers’ access to seven days or more of historical cell-tower records from a wireless carrier constitutes a “search” under the Fourth Amendment in that a cell phone account holder has a “legitimate expectation of privacy in the record of his physical movements.”  Because a Fourth Amendment search ordinarily requires a search warrant based on probable cause, the Court held that the officers obtained Carpenter’s cell-tower records in an unconstitutional manner.

Chief Justice Roberts wrote the majority opinion and was joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor.  Four justices – Kennedy, Thomas, Alito, and Gorsuch – each dissented in separate opinions.

The majority opinion relied in significant part on the two concurring opinions in the Court’s 2012 decision in United States v. Jones.  The majority in Jones held that the warrantless placement of a GPS tracking device on a defendant’s car, which was thereafter monitored 24/7 for over a month, was a “search” under the Fourth Amendment.  The majority in Jones relied on the defendant’s property interest in the car rather than his privacy interest related to having his car’s movements tracked by the GPS device.  Conversely, the two concurring opinions in Jones focused instead on the Jones’s privacy interest in not having his every movement tracked for over a month. 

The majority opinion in Carpenter relied on the concurring opinions in Jones for the proposition that a person has “reasonable expectation of privacy in the whole of their physical movements” over an extended period of time.  Officers’ access to historical cell-tower records violates that reasonable expectation of privacy because it is a “sweeping mode of surveillance” that allows officers to engage in “near perfect surveillance, as if [they] had attached an ankle monitor to the phone’s user.”  Such an “all-encompassing record of the [phone’s user’s] whereabouts” thus is a “search” under the Fourth Amendment, requiring a warrant based on probable cause.

The Court did not hold that law enforcement officers need to obtain a warrant when they access short-term cell-location evidence (i.e., less than seven days’ worth of records).  “[W]e need not decide whether there is a limited period for which the Government may obtain an individual’s historical [cell-tower records] free from Fourth Amendment scrutiny, and if so, how long that period might be.  It is sufficient for our purposes today to hold that accessing seven days of [cell-tower records] constitutes a Fourth Amendment search.”   The majority also did not address whether “real-time” cell-tower monitoring of a suspect’s phone constitutes a “search.”  Those situations will likely be addressed in future cases.

Finally, the Court was clear that it was not overruling its prior cases holding that a person has no Fourth Amendment privacy interest in normal “third-party” business records (such as bank transactions or ordinary phone records).  The Court stated that “there is a world of difference between the limited types of personal information [in such third-party records] and the exhaustive chronicle of location information casually collected by wireless carriers today [in cell-tower records].”

Carpenter is a landmark Fourth Amendment decision.  It requires that law enforcement officers obtain a search warrant based on probable cause before they can access a suspect’s historical cell-tower records of a duration of seven days or more.  Based on its adoption of the reasoning of the two concurring opinions in Jones as the holding of the Court, the majority opinion in Carpenter also has broader implications for officers’ long-term GPS monitoring of suspects’ movements.  Any such monitoring of seven days or more also now requires a search warrant even if officers did not place a GPS device on the suspect’s person or property.

 

 

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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